IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190006282 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 10 October 1980 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060010025 on 21 February 2007. 2. The applicant states when he entered the military, he was a convicted felon. His unit first sergeant (1SG) waived the conviction. The applicant did not receive any assistance concerning his behavior and actions. Over the years he has been admitted to Red River Treatment Center, Alexandria, LA and local hospitals. His friends, family, and clergy have assisted him in resolving his drug issues. He no longer takes drugs and has not taken them for 20 years. He was a good Soldier, making rank in a quick manner. He was young and lived off-post overseas. 3. On 26 January 1976, at the age of 21 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. An enlisted evaluation report, dated 8 December 1977, stated the applicant had always been a hard working Soldier. He worked constantly on upgrading the supply standards of the clinic. However his conduct in areas while off duty were lacking and he was really in need of much improvement. He had always performed his duties when supervised. He worked hard and obtained excellent results with every task assigned to him. However, he needed to develop a better sense of responsibility and improve his off duty conduct, and attendance record. 5. He accepted nonjudicial punishment (NJP) on/in: * 17 July 1978 for wrongfully appropriating a 1 1/4 ton truck, Model M-880 of a value of $6,641.00, the property of the U.S. Government and being absent without leave (AWOL) from 21 June 1978 and remained absent until 22 June 1978; punishment in part, reduction to private E-2, showing held the rank/grade of private first class (PFC)/E-3 * December 1978 for being AWOL from 29 September 1978 and remained absent until 9 October 1978; punishment in part, reduction to PFCE-3, showing the applicant held the rank/grade of specialist (SPC)/E-4 6. On 22 June 1979, the applicant was convicted by general court-martial of: * one specification of wrongfully selling heroin; offense occurring outside of the U.S. * two specifications of wrongfully possessing heroin; offense occurring outside of the U.S. * two specifications of being AWOL: from 13 December 1978 and remained absent until 19 March 1979 and from 20 March 1979 and remained absent until 28 March 1978 7. The NJPs show that the applicant was promoted through the ranks to specialist (SPC)/E-4. The personnel qualification record only shows the date of rank for private E- 1. 8. He was sentenced to be dishonorably discharged, confined at hard labor for six years, to forfeit all pay and allowances, and to be reduced to private (PVT)/E-1. On 17 September 1979, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 20 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. 9. General Court-Martial Order Number 273, dated 6 May 1980, shows the sentence was finally affirmed and ordered executed. 10. On 10 October 1980, the applicant was discharged accordingly. His service was characterized as bad conduct under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2. He completed 2 years, 10 months, and 23 days of net active service this period. His DD Form 214 shows: * He was awarded or authorized: * M16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Time lost under Title 10, U.S. Code 972: 781213-790125 (13 days AWOL) * Time lost after normal expiration term of service: 790126-790318; 790320- 790327 (60 days AWOL); 790403-801010 (557 days confinement) 11. On 21 February 2007, the ABCMR denied his application for an upgrade, determining that the evidence presented by the applicant did not demonstrate the existence of a probable error or injustice. 12. On 11 September 2012, the Army Discharge Review Board, in a letter to the applicant, stated it did not have the authority to consider his case because it had already been reviewed by the ABCMR. The application included two statements from the applicant and in the statements he admitted that in 1974 he had a run in with the law when he went to jail for possessing marijuana. He was on probation when he joined the military and when he was stationed at Fort Ord, CA, the Federal Bureau of Investigation (FBI) came to pick him up but the 1SG intervened by telling the FBI to take the applicant to the U.S. Magistrate in San Jose, CA. The U.S. Magistrate told them to take him back to his unit and he never heard from the FBI again. The statements also explained: * his physical disabilities when he joined the Army (bullet in his leg) * how he joined the Army without a high school education * the struggles he had with taking care of his family (wife and four children) in Germany, which eventually caused he and his wife to separate * why he started using drugs * an operation by the military to remove the bullet in his leg, which left him practically crippled * His life after the military 13. Other than the applicant's statements, there is no evidence in the applicant's record nor did the applicant provide any evidence of him committing a felony or being on probation at the time of his enlistment. 14. The applicant states he no longer takes drugs and has not taken them for 20 years. He was a good Soldier, making rank in a quick manner. He was young and lived off- post overseas. His record shows he enlisted at the age of 21 years old, he accepted two NJPs, and he was convicted by general court-martial selling and possessing heroin, and being AWOL, and he had 73 lost days due to being AWOL and 557 days due to confinement. 15. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 16. AR 635-200 (Personnel Separations – Enlisted Personnel) states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 17. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 18. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, a cout-martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct and the applicant provided no evidence of post- service achievements with his statement or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060010025 on 21 February 2007. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge)), stated an member will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. 2. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006282 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006282 6 ABCMR Record of Proceedings (cont) AR20190006282 5